A Question of Employment Law: Electronic data and employee privacy

Published: September 10, 2010

Q. Melanie complains that her supervisor, Bob, has been sending her inappropriate e-mails and sexually suggestive text messages. After receiving the complaint, Sarah, in human resources, begins an investigation, starting with a search of Bob's e-mails and texts. Are there any concerns with Sarah obtaining this electronic information as part of her investigation?A. Businesses and their employees are impacted by electronic data at an ever-increasing rate. They do so through a host of electronic devices, some of which are employer-owned. In the midst of this, employers who desire to maintain a safe, productive and discrimination-free workplaces look to some level of monitoring of this electronic data.Recently, the U.S. Supreme Court in City of Ontario, California v. Quon, considered whether a public employer had violated an employee's constitutional rights when it obtained and reviewed text messages on employer-owned pagers.In Quon, the city of Ontario, Calif., acquired pagers capable of sending and receiving text messages. The city contracted with a company for text messaging services, wherein each pager was allotted a limited number of characters each month. Usage beyond that number resulted in a separate fee. The city issued pagers to Jeff Quon, a police sergeant, along with his fellow members of the SWAT team.Prior to issuing pagers, the city had implemented a "Computer Usage, Internet and E-Mail Policy." That policy provided that the city had "the right to monitor and log all network activity, including e-mail and internet use, with or without notice" and "[u]sers should have no expectation of privacy or confidentiality when using these resources."Quon exceeded his monthly text message allotment within the first or second billing cycle. The officer in charge of the city's wireless contract reminded Quon that the messages could be audited. Rather than conduct an audit, however, that officer suggested Quon could reimburse the city for the overage fee, which he and other officers did.With so many officers exceeding the monthly limit, the city decided to look into whether the overages were for personal or work-related messages.The review showed that many of the texts on Quon's pager were not work-related and some were sexually explicit. Quon's activity violated city rules, and he was disciplined.Measures to takeQuon argued that the texts were protected from unreasonable searches and seizures under the Constitution. The Supreme Court held that the city's search was reasonable and not a violation of Quon's rights.Employers can take measures to assure sufficient notification to employees and proper searches of electronic information:• Adopt an electronic systems policy that includes all forms of electronic equipment and all information sent or received, stored or contained, on any company owned, operated, leased or otherwise provided to the employee by the company equipment/system.• State in the policy that the employee has no expectation of privacy or confidentiality when using such resources.• Notify employees the company's electronic systems are subject to monitoring and inspection by the company at any time.• Monitor or search the company's electronic systems when there is a legitimate business purpose and only within a reasonable scope.• Periodically review all policies and make any modifications due to changing technology.Jennifer L. Parent, chair of the Employment Law Practice Group of McLane, Graf, Raulerson & Middleton, can be reached at 603-628-1360 or jennifer.parent@mclane.com.